Chelsey Cody v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 31, 2017
• Docket: 49A05-1612-CR-2681
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 31 2017, 9:46 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General Katherine Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Chelsey Cody, May 31, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1612-CR-2681 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David J. Certo, Appellee-Plaintiff. Judge The Honorable David Hooper, Magistrate Trial Court Cause No. 49G12-1606-CM-21362

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017 Page 1 of 6 Statement of the Case [1] Chelsey Cody (“Cody”) appeals her conviction, following a bench trial, for

Class A misdemeanor resisting law enforcement.1 Cody argues there is

insufficient evidence that she forcibly resisted the police officer. Concluding

that Cody’s argument is merely a request to reweigh the evidence, we deny this

request and affirm her conviction.

[2] We affirm.

Issue Whether sufficient evidence supports Cody’s resisting law enforcement conviction.

Facts [3] On June 2, 2016, Sergeant James Trimble (“Sergeant Trimble”) and Deputy

Merrill of the Marion County Sheriff’s Department responded to a dispatch call

to serve an outstanding warrant on Cody. Both officers arrived in a marked

police car and were dressed in full uniform. When they arrived, Cody was

sitting in her vehicle while on a work break. As Sergeant Trimble and Deputy

Merrill approached the driver’s side of her vehicle, Cody locked the doors and

rolled up the windows.

1 IND. CODE § 35-44.1-3-1.

Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017 Page 2 of 6 [4] Sergeant Trimble identified himself as a police officer, told Cody that she had a

warrant, and instructed Cody, through the closed window, to get out of the

vehicle. However, Cody refused. Sergeant Trimble “gave several more loud

commands for her to exit the vehicle.” (Tr. Vol 2 at 9). Cody ignored his

instructions and called 911. The dispatcher instructed Cody to exit and

contacted Sergeant Trimble. Thereafter, Sergeant Trimble again informed

Cody she had an outstanding arrest warrant. Deputy Merrill then went to the

slightly ajar back passenger window and ordered Cody to get out of the car.

When Cody refused again, the officer advised her that if she did not exit, she

would be tased. Cody opened the driver’s door but refused to get out and

stand. Sergeant Trimble “extracted her from the vehicle using an arm bar take

down.” (Tr. Vol 2 at 10). He then told her to get on the ground. Cody refused

and “spun away” from the Sergeant. (Tr. Vol 2 at 10). Sergeant Trimble used a

“front leg sweep” to gain control of her and get her on the ground. (Tr. Vol 2 at

10). Cody was then arrested and taken into custody.

[5] The State charged Cody with Class A misdemeanor resisting law enforcement.2

The trial court held a bench trial, and Sergeant Trimble and Cody testified. The

trial court found Cody guilty of resisting law enforcement and imposed a 365

day sentence and suspended 355 days. Cody now appeals.

2 The State also charged Cody with Class B misdemeanor possession of marijuana, but that charge was dismissed at trial.

Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017 Page 3 of 6 Decision [6] Cody argues that the evidence was insufficient to support her conviction for Class A misdemeanor resisting law enforcement.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

and citations omitted) (emphasis in original).

[7] The resisting law enforcement statute provides that “[a] person who knowingly

or intentionally forcibly resists, obstructs or interferes with a law enforcement

officer . . . while the officer is lawfully engaged in the execution of the officer’s

duties” commits class A misdemeanor resisting law enforcement. I.C. § 35-

44.1-3-1(a)(1). To convict Cody as charged, the State was required to prove

beyond a reasonable doubt that Cody knowingly or intentionally forcibly

resisted, obstructed, or interfered with Sergeant Trimble while he was lawfully

engaged in the execution of his duties.

Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017 Page 4 of 6 [8] Cody argues that there was insufficient evidence to show that she forcibly

resisted the officer. The Indiana Supreme Court has held that one forcibly

resists when one uses “strong, powerful, violent means to impede an officer,”

but noted that the standard “may be satisfied with even a modest exertion of

strength, power, or violence.” Walker v. State, 998 N.E.2d 724,727-28 (Ind.

2013). The force needed need not rise to the level of mayhem. Graham v. State,

903 N.E.2d 963, 965 (Ind. 2009). It is well established that even stiffening one’s

arm when an officer grabs hold to position them for cuffing would suffice. Id.

at 966.

[9] There is sufficient evidence to support the trial court’s determination that Cody

forcibly resisted law enforcement. Cody refused several times to exit her

vehicle even after being informed that Sergeant Trimble had a warrant for her

arrest. Sergeant Trimble testified Cody spun to get away from him. Cody’s act

of spinning away from the officer as he grabbed her arm and pulled her from

the car demonstrates that she forcibly resisted the officer. The spin was a

“modest exertion of strength, power or violence.” See Walker, 998 N.E.2d at

727-28. As such, sufficient evidence exists to support that Cody forcibly

resisted the officer.

[10] Cody suggests that she offered only passive, not forceful, resistance. Cody

contends that her spinning away from the officer as he grabbed her out of the

car did not amount to forcible resisting because it “is possible that she spun

away [because] she lost her balance.” (Cody’s Br. 11). In support of her

argument, she cites to Macy v. State, 9 N.E.3d 249 (Ind. Ct. App. 2014), Colvin v.

Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017 Page 5 of 6 State, 916 N.E. 2d 306, 309 (Ind. Ct. App. 2009), and Berberena v. State, 914

N.E. 2d 780, 782 (Ind. Ct. App. 2009). These cases are distinguishable because,

unlike the defendants in those cases, Cody forcibly resisted the officer.

[11] Cody’s argument is merely a request to reweigh the evidence. We will not

reweigh the evidence or judge the credibility of witnesses. See Drane v. State,

867 N.E.2d at 146. When entering its verdict, the trial court stated that it gave

more credibility to Sergeant Trimble’s testimony. Specifically, it stated that

“[b]ased on the testimony . . . [it believed] that Sergeant Trimble’s account of

Cody’s conduct is a more complete [. . .] and accurate description of how the

incident occurred.” (Tr. Vol. 2 at 38). There was sufficient evidence from

which the trial court, as trier of fact, could have found that Cody resisted law

enforcement.

[12] Affirmed.

May, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017 Page 6 of 6